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Refugees and Transitional Justice: Reflections on fieldwork from Liberia – Jacqueline Parry, Centre for International Governance and Justice. Reprinted by special permission of Regarding Rights
Both refugees and transitional justice have the ability to convey potent messages about state sovereignty. Sovereignty, the set of norms held by the international community concerning the legitimate organisation of political authority, has changed over time and according to context. Since the Second World War the understanding of sovereignty has shifted from being a purely territorial matter to incorporating – in rhetoric if not in fact – a particular type of relationship between the state and its citizens.Specifically, states must now justify their sovereignty by demonstrating that they accept and uphold the responsibility to protect the rights of their citizens and those within their territory. This has an external and an internal dimension, speaking to both the international community and the domestic population.
Both refugees and transitional justice can come to symbolise the way a state does or does not protect its citizens. The very existence of a refugee embodies a state’s inability or unwillingness to protect its own citizens, thus undermining its legitimate sovereignty. Transitional justice, on the other hand, can provide a way for the state to emphasise its legitimacy by indicating a break with the past, and, aided by human rights discourse, demonstrate its intention to protect the rights of its citizens going forward. Transitional justice—those mechanisms that are used after a conflict or change in regime in order to come to terms with a history of human rights abuse—can include criminal trials, truth and reconciliation commissions, reparations, restitution, and institutional reform.
It usually relies upon moral reasoning (including values such as reconciliation) and legal reasoning (predominantly that of human rights and international law) to justify its aims and modalities, which often means that its strategic political use is obscured. However, when these two issues (transitional justice and refugees) come into contact, this can offer insight into the way that legitimate sovereignty is actively constructed by the state through the mechanisms of transitional justice.
If refugees embody a state’s inability or unwillingness to protect its own nationals, then it is not surprising that the return of refugees is often taken to symbolise a first step in re-asserting legitimate sovereignty.
However, this can create a significant challenge when a state pursues transitional justice while a large refugee population remains unwilling to repatriate: how can refugees, whose very existence undermines legitimate sovereignty, participate in a process intended to legitimise the new state? Exploring this question demonstrates how the interests and goals of states and citizens often diverge and how, as Apland describes, transitional justice is not simply about righting past wrongs, but is fundamentally about negotiating, legitimizing and shaping new forms of power.
Transitional justice mechanisms are, by definition, state-led mechanisms. This means that regardless of the efforts made to create a mechanism grounded in local culture or citizen demands, it is the state who ultimately determines the mandate, technical function, and resourcing of a particular mechanism. Refugees are able to participate on the invitation of the state, and often require special types of assistance to be provided: in the case of the Liberian Truth and Reconciliation Commission, for instance, Commissioners visited a number of refugee camps in order to enable refugees to provide testimony.
A second key point is that transitional justice does not automatically build legitimacy for the state, but must be deployed in a specific way in order to serve that end. This has very practical implications for refugees. It means that the state may circumscribe how refugees are able to participate in transitional justice mechanisms, as well as the types of remedies that are considered, and this can have a significant impact on the way in which refugees subsequently engage with their state.
Scholars provide the example of how this materialized in Bosnia, where the new Bosnian state (backed by the UN mission) stressed the right of refugees to return and reclaim their property, despite the fact that many refugees did not wish to exercise this right and that many would have preferred to return elsewhere (or not at all) in exercise of different rights, such as freedom of movement.
In Liberia, transitional justice – and specifically, the TRC – took place within the context of a new government attempting to assert legitimacy in the wake of a long civil war. The state often used the TRC (and engagement with issues of transitional justice more generally) to evidence and push the view that it was now safe for refugees to return. Many refugees, on the other hand, attempted to use their participation in the TRC to justify their unwillingness to return to Liberia. The state was able to pursue its interests by limiting refugee testimony to violations that occurred in the remote past, even though these were often not the reasons why refugees remained hesitant to return. As a result, it was difficult for refugees to challenge the notion that the state had successfully gone through a transition, and it also limited the reparative actions considered by the state to remedy past wrongs. The TRC made frequent reference to the “rights” of refugees: the right to return, the right to property restitution, and the right to participate in the TRC.
However, many refugees argued that pursuit of such rights actually disempowered them, as they disputed the claim that it was safe to return, did not want to reclaim their property, and contended that participation in the TRC was a public relations effort on the part of the state and UN, rather than a genuine attempt to rebuild state-citizen relations, create accountability, or show respect for individual rights. The rights which refugees most frequently attempted to claim were those related to social and economic power, but these remained unaddressed in any practical sense by transitional justice. Arguably, one difficultly in addressing social and economic rights is that to do so would have the effect of highlighting the high level of corruption, lack of social services, and poor relations which still exist between state and citizen, which would, in turn, undermine the new Government. The TRC was also grounded in very specific concepts of legalism, individualism, and accountability, which supported the state-building agenda but rendered transitional justice distant and irrelevant to many refugees.
As a finishing point, I do not wish to suggest that the whole picture is negative. In cases where refugee interests align with those of the state, and refugees do, for example, wish to testify about past violations, reclaim their property, or return home, then their participation in transitional justice mechanisms could be leveraged to quite positive ends. The complication arises, however, when refugees envisage rebuilding their relationship with the state in a way that potentially undermines the current understanding of legitimate sovereignty, as when refugees request reparations that support them to remain outside their country of origin. It is essential to move beyond a celebratory, technical, or theoretical approach to refugee involvement in transitional justice in order to understand how this interaction is used – both by the state and by refugees themselves – towards the process of negotiating, legitimizing, and shaping new forms of power.
 Christian Reus-Smit, “Human rights and the social construction of sovereignty,” 27 Review of International Studies (2001) 519, 526.
 Reus-Smit, 528; W.M. Reisman, “Sovereignty and Human Rights in International Law,” 84(4) American Journal of International Law (1990) 866, 872.
 Anne Peters, “Humanity as the A and Ω of Sovereignty,” 20(3) The European Journal of International Law (2009) 513-544.
 For instance, see: Wallace and Quiroz, “Refugee and internally displaced: A challenge to nation-building,” 60(2) Maine Law Review (2008) 410-428.
 Kara Apland, “The Power and Politics of Transitional Justice,” in Justice in Conflict, available at: justiceinconflict.org/2012/01/16/the-power-and-politics-of-transitional-justice/
 For example, see: Stef Jansen, “The Privatisation of Home and Hope: Return, Reforms and the Foreign Intervention in Bosnia-Herzgovina,” 30 Dialectical Anthropology (2007) 177-199.
 Instead, interviews conducted during fieldwork indicated that their hesitation in returning often related to ongoing fears of insecurity, or dire social and economic conditions that would be faced on return.
 For another example of this happening, see David Cantor’s work on Colombian refugees in Latin America: David Cantor, “Restitution, Compensation, Satisfaction: Transnational Reparations and Colombia’s Victims’ Law,” (Working Paper no. 215, New Issues in Refugee Research, Evaluation and Policy Analysis Unit, UNHCR, August 2011).
Jacqueline Parry is a PhD candidate at the Centre for International Governance and Justice, Australian National University, working within Professor Hilary Charlesworth’s ARC Laureate Fellowship Project. She began her career as a migration agent in Sydney, and in 2007 commenced work with UNHCR as a Protection consultant. She has since undertaken roles with UNHCR in Indonesia, Jordan, Malawi and Afghanistan. Her research interests include human rights, refugee law, transitional justice and state-building.